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Managed care and payment for experimental or investigational devices.

Article Excerpt
The issues surrounding the (non) payment of treatments deemed experimental or investigational by health plans continue to be fought out in the courts on a case-by-case basis. Resolution of the issues raised in these cases seems to be the product of three elements:

1. The policy or plan coverage language;

2. The administrative review and appellate process; and

3. Whether the claim arises in the context of a claim under ERISA, or a claim for breach of the coverage provisions of an insurance policy.

The recent decision denying a motion for summary judgment by a federal district court in New Hampshire in Paul Chapman v. Anthem Health Plans of New Hampshire, Inc. (1) (Chapman) illustrates all three elements.

The Factual and Procedural Background

In Chapman, a claim was asserted that Anthem Health Plan failed to provide coverage for surgical intradiscal electrothermal therapy (IDET), thereby breaching the provisions of a policy issued by the claimant's employer, the City of Rochester. As is often the case, the procedure was recommended after more conservative treatment failed. The use of IDET at the time had been approved by the US FDA (in 2000), and was supported by two separate and independent studies. Nevertheless, upon a request for coverage, which was accompanied by the available studies supporting, the request was denied.

The initial request for review was denied on the grounds that the procedure was "investigational." This conclusion was based upon medical literature surveys, one developed by the Blue Cross and Blue Shield Association Technology Evaluation Center (TEC), published in August 2002, and another by an independent physician. The essence of these two studies was a concern that...

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